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IN THE HIGH COURT OF BOMBAY
M.P. Kenia, J.
B.S. Mahajan since deceased by his heirs and
legal representatives.... Petitioners.
Versus
Chapsey R. Mistry.... Respondent.
Writ Petition No. 441 of 1986, decided on 28-10-1987.
Advocates appeared :
G.L. Damle, for petitioners.
A.K. Abhyankar, for respondent.
The defendants residence being in adjoining building to the suit premises, themselves have their premises, the defendants mother died in the year 1958 was visiting plaintiffs family on festival days and the defendants father used to purchase ornaments from the plaintiffs father who was a jeweller and the failure on the part of the original plaintiffs to serve the notice under Section 12 (2) at the residential address of the defendant which is next door particularly after receiving back the notice sent by Registered Post A. D. is far from satisfactory and justifies a finding that the original plaintiffs have failed to prove that they served the notice of demand upon the defendant as required by Section 12 (2). This finding cannot be said to be perverse or even non acceptable.
Section 13 (1) (k)-Suit for equisition on non-user of suit premises Indicative of non-user.
The Appeal Bench of the Court of Small Causes has in its judgment noticed that there was no documentary evidence of the contract of letting out and the purpose for which they were let out, that the original plaintiff No. I who deposed in the suit personally did not know about the, purpose of letting out of the suit premises, that admittedly, the premises were let out to the deceased Raisi Mistry who was a building contractor, at the monthly rent of Rs. 17/- and it appears that the premises were let out for office-cum-god own purposes. Apart from the purpose for which the suit premises were let out not having established by the plaintiffs with regard to the non-user (which has to be for a continuous period of six mouths preceding filing of the suit), there has not been any material on record indicating the same except the argument that the absence of electricity and the connecting of mori to the drainage in the suit premises (it appears that the building was fitted with electric connection in or about the year, 1955) arc the only factors raised in the argument with regard to non-user. On the other hand, the Appeal Bench has pointed out that the absence of a mori in a place used for storage and it appears that the place is used for storage and for preservation and records etc. is not necessarily indicative of non-user. In fact, the Appeal Bench has gone on to notice the photographs of the suit premises and the fact that the suit premises appear to be quite clean and not such as has not been used for a large number of years. Various factors and evidence indicate that in evidence on behalf of the plaintiffs, it was not possible for them to deny that the suit premises were indeed used for preserving of record any, in any case, it could not be said that the suit premises had not been used for the purpose for which it was let for a continuous period of six months immediately preceding the filing of the suit.
Order 1, Rule 9-Necessary party-Non-joinder of-Eviction suit-If all legal heirs and legal representatives not brought on record, amounted to non-joinder of necessary party-Hence suit bad there for.
The original tenant, the late whose contractual tenancy incidentally had never been terminated died leaving his as heirs and legal representatives two sons and a daughter, one of the two sons being the respondent herein. The other son by name was alive at the time of filing of the suit and for 2 or 3 years thereafter passed away in the year 1973. That there can be little doubt that if the estate of the late tenant has to be sued, all the persons who are heirs and legal representatives of the late tenant who are likely to be affected by the passing of a decree, must be made parties.
2. One Shamrao Mahajan was the owner of the property known as 'Sita Niwas' at Vallabhbhai Patel Road, Vile Parle (West), Bombay 400 056. He was on friendly terms with one Raisi Mistry and Sometime in the year 1941, the said Shamrao created a tenancy in respect of a two-room premises on the northern side, on the ground floor in the aforesaid building Sita Niwas, the exact date not being known to any of the parties. The exact purpose for which the suit premises was let out has not clearly been established but it appears that the same was let out for the purpose of office-cum-godown as will appear herein below. The said Shamrao Mahajan passed away on the 23rd August, 1961 and the said Raisi Mistry to whom the suit premises had been let out also passed away in the year 1963. It seems that in the month of August 1963, the respondent being one of the sons of the late Raisi Mistry, had made a payment of Rs. 400/- by cheque towards the rent in respect of the suit premises which had been accepted.
3. By a notice dated 29th September, 1970, addressed by the learned Advocate for the petitioners being the heirs and legal representatives of the late Shri Shamrao Mahajan to the respondent and “other heirs and legal representatives of the late Shri Raisi Mistry”, it was, inter alia, contended that the rent in respect of the suit premises had fallen in arrears and that the premises in question had not been used for the past over 17 years. By the said notice, the tenancy in respect of the suit premises was terminated. This was followed by the filing of R.A.E. and R Suit No. 6449 of 1970 in the Court of Small Cause at Bombay by Shri B.S. Mahajan , Smt. Malini alias Malti V. Vazumdar, heirs and legal representatives of Shri Shamrao Balaji Mahajan against the respondent herein seeking a decree in eviction against him in respect of the suit premises on the grounds of arrears of rent and non-user of the suit premises for the purpose for which it had been let out. This suit appears to have been filed on 19th December, 1970. The Respondent being the sole defendant in the suit, filed his written statement wherein he raised a variety of pleas denying that the original plaintiffs were entitled to any reliefs and pointing out inter alia that the alleged notice dated 29th September, 1970 had never been received by the Respondent and/or by the other heirs and legal representatives of the Late Shri Raisi Mistry and pointing out further that the Respondent was residing in a building adjoining the suit premises and was using the suit premises to the knowledge of the original plaintiffs who had however deliberately chosen not to serve the alleged notice upon the defendant personally. It may be mentioned that on an application made by the respondent, an order was passed on 8th April, 1972 by the trial Court by which the respondent was permitted to deposit in Court the arrears of rent and it appears that thereafter the respondent has been depositing in Court the amount of monthly rent from time to time. The trial Court by a judgement and decree dated 20th October, 1978, decreed the suit directing the respondent to deliver vacant possession of the suit premises on or before 1st of January, 1979 and to pay to the plaintiffs Rs. 612/- and granting other reliefs. It may be mentioned that the trial Court had framed issues covering the questions whether the notice dated 29th September, 1970 was legal, valid and had been property served (which issue is answered in the negative), whether the suit was bad for non-joinder of necessary parties of all the heirs and legal representati
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